"The Unitary Executive"
I’ve been turning the implications of the administration’s broad new view over in my head all day. I think to grasp how stunning this is, you need to listen to David Rivkin’s defense:
David B. Rifkin, who worked in the Justice Department and White House counsel’s office under presidents Ronald Reagan and George H.W. Bush, praised the position and said it is consistent with the idea of a “unitary executive.” In practical terms, he said, “U.S. attorneys are emanations of a president’s will.” And in constitutional terms, he said, “the president has decided, by virtue of invoking executive privilege, that is the correct policy for the entire executive branch.”
That makes a certain kind of sense, I suppose, and also offers an explanation as to the meaning of the “unitary executive” metaphor. The executive branch is, clearly, composed of many people. But it’s personified by a single president — the unitary executive. The US Attorneys who might serve a contempt citation are part of this executive. They can’t enforce rulings against the decisions of the head of that unitary executive because they are part of it. Here’s the relevant Richard Nixon interview with David Frost:
FROST: So what in a sense, you’re saying is that there are certain situations, and the Huston Plan or that part of it was one of them, where the president can decide that it’s in the best interests of the nation or something, and do something illegal.
NIXON: Well, when the president does it that means that it is not illegal.
FROST: By definition.
NIXON: Exactly. Exactly. If the president, for example, approves something because of the national security, or in this case because of a threat to internal peace and order of significant magnitude, then the president’s decision in that instance is one that enables those who carry it out, to carry it out without violating a law. Otherwise they’re in an impossible position.
It’s disturbing stuff. In an ideal world, enough GOP members of congress would be more jealous of their institutional powers than eager to back a co-partisan, and we’d see some veto-proof legislation getting passed to address this. I’m not optimistic.